"A majority taken collectively is only an individual, whose opinions, and frequently whose interests, are opposed to those of another individual, who is styled a minority. If it be admitted that a man possessing absolute power may misuse that power wronging his adversaries, why should not a majority be liable to the same reproach?" - Tocqueville, Democracy in America

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Friday, March 09, 2012

For want of a nail, a shoe was lost…

In his book, “The Due Process of Law”, at page 6, the great Lord Denning, recounts a delightful story.

“On every Monday morning we hear litigants in person. Miss Stone was often there. She made an application before us. We refused it. She was sitting in the front row with a book-case within her reach. She picked up one of Butterworth’s ‘Workmen’s Compensation Cases’ and threw it at us. It passed between Lord Justice Diplock and me. She picked up another. That went wide too. She said, ‘I am running out of ammunition’. We took little notice. She had hoped we would commit her for contempt of court – just to draw more attention to herself. As we took no notice, she went towards the door. She left saying: ‘I congratulate your Lordships on your coolness under fire’.”

Of course, in our Federal Court recently, shoes went a-flying towards the Bench rather than books.

When I first read about the shoe-throwing incident in our Federal Court, my first reaction was to think, why wasn’t the shoe-thrower arrested and made to answer a contempt charge? To my mind, the act of throwing shoes at the Judges was surely contemptuous. And for the Court to let it be, without taking any action against him scandalises the Federal Court. Even worse than that, other people, including some disgruntled lawyers in the future might choose to do the same after having seen a precedent being set where the culprit was left scot free. Frankly, I myself, have had the discomforting thought of throwing my bags at some Judges before.

Later I read that a police report was lodged against the Jimmy Shoe. Then yesterday, I read that Mr Shoe-go-lucky was summoned to the Court to answer a contempt charge. The same Judges sat to hear the contempt proceeding, found him guilty and sentenced him to 12 month jail.

In passing the sentence, Federal Court Justice Suriyadi was reported to have said:

"You hold a religious position which is held in high esteem by the public. However, you showed characteristics of being barbaric and violent.

The power of the Court to punish contemptuous act was first laid out by Wilmot J in R v Almon in 1765. Such power, according to Wilmot J, was necessary to vindicate the authority of the Court. It was a power which forms the foundation of the Court as an institution.

It was therefore thought that the power to commit people for contempt of Court was an incidental power of the Court in order to protect the dignity and authority of the Court.

In modern democracy, it has been argued that such view is obsolete. It is now argued that the necessity to protect the dignity and authority of the Court as stated in R v Almon rested on the premise that in the olden days, the Court was an appurtenance of the King, from whom the Court derived its powers. Thus, protecting the dignity and authority of the Court was anomalous to protecting the King’s dignity and authority.

This position, in a modern democracy, is of course not applicable anymore as in a democracy, the Court, just like any other machinations of the State, derives its dignity and authority from the people.

Being so, it is now argued thus:

“In a democracy, on the other hand, it is the people who are supreme, and therefore they are the superior entity, while all State authorities (including Judges) are inferior entities, being the servants of the people. Hence in a democracy there is no need for Judges to vindicate their authority or display majesty or pomp. Their authority will come from the public confidence, and this in turn will be an outcome of their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy by Judges, and there is no need for them to display majesty and authority.” (Contempt of Court: The need for a fresh look - Justice Markandey Katju ,Judge, Supreme Court of India).

The whole premise of the power to punish for contempt of Court in modern times have therefore been substantially changed. While the power was said to exist for the vindication of the Court and protection of its dignity and authority before, currently the power is held to protect the administration of justice instead.

In AG vs. BBB (1980) 3 All ER 161 (170), Lord Salmon said:

“The description `Contempt of Court’ no doubt has a historical basis, but it is nonetheless misleading. Its object is not to protect the dignity of the Courts but to protect the administration of justice.”

Even as early as 1968, in R vs. Commissioner of Police (1968) 2 QB 150 Lord Denning found it necessary for the Court to break away from the notion that it was protecting its own dignity or authority. His Lordship stated:

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it.For there is something far more important at stake. It is no less than freedom of speech itself.”

The most telling part of Lord Denning’s judgment in that case, however, is this:

“All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”(emphasis is mine).

Many of us will remember the Spycatcher case. It’s official name isAttorney General v. Guardian Newspaper 1987(3) All.E.R. 316. What happened there was Peter Wright, a former spy, wrote a book, entitled The Spycatcher, chronicling his days as a British spy. The government took an injunction against the book. The case went up right to the highest Court in Britain, the House of Lords. In a 3-2 majority decision, the House of Lords granted an injunction against the publication of the book for national security reason.

The next day, some newspapers published pictures of the 3 majority Judges upside down with the caption “YOU FOOLS.”

One of the three Judges in the majority decision, Lord Templeman, was asked why contempt proceeding was not initiated against the newspapers. He just smiled and was quoted as saying:

“Judges in England did not take notice of personal insults. Though he believed he was not a fool, others were entitled to their opinion.”

It is quite obvious that now that the power to punish contemptuous acts is not utilised to either vindicate the Court or to protect its authority. Nor is it used to instil respect to the Court.

In current days, the Court vindicates itself by being independent, by coming up with highly stimulating and intellectual analysis of the facts and the laws in cases before it and by determining cases judiciously, far from being bias and without fear or favour. Respect and awe for the Courts are no more foisted unto the people by exercising the might of judicial power such as imposing a 12 month imprisonment on a lay person who appeared in Court without any legal Counsel fighting against Counsel for various government agencies. In fact that might work negatively.

One striking aspect of yesterday’s proceeding is the fact that all three Judges, at whom the shoes were thrown, sat to hear the contempt charge and proceeded to sentence the contemnor.

Admittedly, the act was contemptuous. And admittedly too, the three Judges have the power to hear the contempt case and sentence the contemnor.

Justice must not only be done, but also must be seen to be done. This judicial pronouncement has been so frequently mentioned so much so that it has become a legal maxim of sorts.

In my humble opinion, and I say this with the greatest of respect to Federal Court Justices Zulkifli Makinuddin, Suriyadi Halim Omar and Zaleha Zahari (for whom I have the greatest of respect), it would have served the above maxim far better in the public eye if her Ladyship and their Lordship had recused themselves from sentencing the contemnor or even from hearing the contempt charge by themselves.

The shoes were thrown at their Ladyship and Lordships personally. It is not only the Court or the Bench which was insulted (and perhaps attacked) by the contemnor. Their Ladyship and Lordships themselves, personally and individually, were attacked and insulted. Surely, in the eye of the people, the Judges involved cannot say with an amount of credibility that no emotion or personal feeling was involved in the conviction and subsequent sentencing of the contemnor.

Perhaps Lord Denning’s story at the beginning of this article could serve all of us with some food for thought.

Just perhaps.

By the way, the title to this article is part of an old English proverb which goes like this:

For want of a nail the shoe was lost.For want of a shoe the horse was lost.For want of a horse the rider was lost.For want of a rider the message was lost.For want of a message the battle was lost.For want of a battle the kingdom was lost.And all for the want of a horseshoe nail.

Wikipedia explains that the proverb “describes a situation where permitting some small undesirable situation will allow gradual and inexorable worsening.”

The day after the incident, my Father in Law asked me why no action was taken by FC against this Imam. He was so furious not just to the Imam but also to the said Judges. Even though he’s not a lawyer, he was of the view that this act may set dangerous precedent as u highlighted in Para 4 of your article.

It is my humble opinion that they were right in imposing custodial sentence to this Imam to reflect the seriousness of the Offence. However, I strongly disagree that “only a custodial sentence will redeem the dignity of the court”. In “Honest lawyer” written by Lord Denning [1983] 2 CLJ 174, he said:

”Furthermore no Counsel is allowed to suggest to the Judge what the sentence should be. That is for the Judge alone. No Counsel must attempt by advocacy to influence the Court towards a more severe sentence: though hie may, and often does, draw the attention of the Judge to any mitigating circumstances which may induce a lesser sentence. If Counsel for the accused should ask the Judge not to inflict a prison sentence but to bind him over to be of good behaviour, Counsel for the prosecution must not get up and say that he opposes it. Likewise with the right of cross-examation, Counsel for the prosecution must exercise it in a moderate and restrained manner, not in any way browbeating the man who is on trial. In particular he is not allowed to bring up things in the accused’s past history which are to his discredit, unless the accused man exposes himself to it - as he sometimes may - by casting imputations on the character of the witness for the prosecution. But even so, Counsefor the prosecution will not bring out the man’s previous convictions except when it is fair to do so, and he will always warn the prisoner’s Counsel beforehand so as to give him the opportunity to avoid it. The reason is that tradition demands that he should act, not as an advocate to condemn theaccused, but as a minister of justice to see that he is fairly treated.

I’m not sure whether the said Judges in not instituting the contempt charge immediately should give reason or at least commented something on that fateful day. Without reason, it is my honest assumption that they didn’t bother by the Imam’s conduct on that day. This was my honest answer to question posed by my Father In Law.

It is open now for public to say the said Judges were in breach of basic principle of justice that the same entity should not act as Judge and prosecutor at the same time.

Bad bad case from the start! The Court should have given the poor Imam a chance to address them. When he was denied that, he got furious as that cannot be the way judges decide. Anyway please order the judges to read: "Writing of Judgments - a Practical Guide for Courts and Tribunals" by LexisNexis. Our judges need this Book badly, urgently and expressly.

Actually we should have read deeper into this whole case from the very beginning- for want of reminding the readers-initially when it happened, the judges were honorable enough to forgive the ustaz personally and went out of their way asking whichever reporters were there in court to NOT mention it in their report and if I read correctly they were almost requesting many times for the reporters to not report out. I belive there were not many of them but one smart aleck ( I would ratherr say bangang) reporter from Malaysiakini reported it out- all because it was a juicy story and the idiotic editor o fthat newspaper who could not see the ramifications of it allowed it to be published. ( bloody simpleton of an editor!!- I would say)

Once its gone public somehow the judges and attorneys are tied to charge him. And to make it worse- Wong Chung Hai from the Star newspaper in one of his SUnday editorial was so adamant and insistent that this ustaz be charged otherwise it may have set a precedence. Wong should have just sticked in his usual editorial talking about hawker food in Penang, how he missed Penang and all the rubbish about the Penang staff that he like to idolise in his editorial - but instead start talking rubbish and ensuring this case was brought to even more publicity.

The rest as they say is history. Now his family has to do without him for 1 year, what with kampung folks impression on the family etc etc...The family has now to suffer.

It was a brink of the moment affair and the judges would have all forgiven and move on but stupid idiotic reporters who has nothing much in between their ears, who could never in smal;l pea brain of theirs imagine the far sighted impilications just go about reporting it. Now a whole family suffered. It was a personal affair between the judges and they may have forgiven - which may have happened had the public did not knwo abt this- but once it became public it has now go to go thru the full brink of the law.

On the contrary, I would say- judging from their body languages , their insistence on this not to be publicised which I could only want to presume that this embrassing affair was more of an embarassment to the accused for doing that ridiculous act and I would have imagined they may in their power under their jurisdcition would have the individual to be held in detention for few days or so after the case or being charged to do civil social duties etc etc. They probably would have discussed amongst themselves on what they should have done with this person hence their deliberation maybe for the next hours or so but that reporter - probably at the spur of orgasm that he may have felt due to possible juiciness of the story wired the story and the simpleton of an editor,probably in their spasmodic double simultaneous orgasm, decided to publish it there and then.

Once its gone public- like the contemporary bubonic plague it went viral in internet. SO the judges are now left with no choice otherwise all sorts fo accusations would have been thrown at-

Ball-less judges !!Judges being ridciuled and no action taken!!Emasculated judiciary- being contempt at and fear to take any demonstrative action against accused!!Etc etc!!

Art Harun himself shared how Denning -in almost similar action being taken on him ( although it was only books instead of shoes) just poh poohed the whole thing and I would have imagined only the circles of lawyers knew this and it probably did not warrant any publications material and so went private.

Hence my insistence- it was a spur of the moment thingy, it was personal between the accused and the judges, judges insisted not to be publiicised etc etc but that was not to be and with the level of immaturity Malaysia public is , this thingy was so considered so juicy and insisted things must be reciprocated.

The jail has to now feed him but back home the wife would now have to go thru suffering all alone taking care of 7 kids all on her own. A simple and innocous family now is almost being racked. Saja nak kacau. Benda tak payah nak bagi susah , it now becomes a burden- bloody bangang reporter and editor!!!

I had a good laugh because your approach of quoting Lord Denning and other esteemed English judges on a subject matter where our Malaysian judges were put on the spotlight is totally off tangent.

The English judges hold themselves to the highest level of conduct and integrity. They are learned people who make reasoned and considered decisions grounded on the laws of the land.

I cannot say the same for the Malaysian judges. Most of them are close to the opposing end of the spectrum. We have seen so many instances where they demonstrate utter lack of understanding of the very laws that they are asked to uphold, ... one of the latest ones being "motive need not be a reason for committing murder".

In short, you are asking a donkey to be a horse.

I wouldn't be surprise that our judges think Denning is a type of English tea.

I think the contempt argument sucks for the same reasons you have pointed out; and there has been a a tendency to misunderstand its purpose and not to ask too many questions about its purpose today, both of which you have also pointed out.

This is what I thought when Matthias irritated Noor Azian Shaari HCJ. I find it very difficult to sympathise with him because of his sheer bloody-mindednes, which I admit can be a good thing sometimes, but the prevailing sentiment then was that he damned well deserved it. Ah well, it is Matthias after all...

In the Imam's case, however, I think it curious that so few should ask if the punishment fits the crime. Matthias got a month for effectively calling the judge an blooming moron, walking out with a dramatic flourish, and so on. (He also paid the fine of RM20k.)

Perhaps the physical threat of bodily injury, from a shoe, requires that a stern example should be set lest we think it acceptable to start throwing the entire Britannica next.

But one of your readers pointed out very rightly that the learned FCJJ had originally intended to hush the whole thing up. Far be it from me to presume what goes through their learned minds, or why they should change them, but twelve months strikes me as excessive.

Worse offenders have got off with less. It is this lack of consistency in sentencing (inter alia) that I think contributes most to the lèse of the judicial majesté in our country.

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About Me

Art Harun believes that he is a failed government experiment, abandoned and left alone to roam the streets after all remedial efforts yielded no positive result. He calls himself a non-governmental organism, practices law for a living and tries very hard to play guitar, sing, race cars and write some stuffs to stay alive.